Kyle Spring v. James LeBlanc , 544 F. App'x 321 ( 2013 )

Case: 12-30659 Document: 00512181907 Page: 1 Date Filed: 03/20/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 20, 2013
No. 12-30659
Summary Calendar Lyle W. Cayce
Clerk
KYLE SPRING,
Petitioner-Appellant,
versus
JAMES M. LEBLANC, Secretary, Department of Public Safety and Corrections,
Respondent-Appellee.
Appeal from the United States District Court
for the Middle District of Louisiana
No. 3:11-CV-308
Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Kyle Spring, Louisiana prisoner # 555065, was convicted following a bench
trial of second degree murder and was sentenced to life in prison. After unsuc-
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 12-30659 Document: 00512181907 Page: 2 Date Filed: 03/20/2013
No. 12-30659
cessful direct review, he filed a timely 28 U.S.C. § 2254 petition for writ of
habeas corpus asserting claims arising out of the denial of a motion for a new
trial. The district court denied the petition but granted a certificate of appeala-
bility (“COA”). After obtaining an extension of time, Spring filed a notice of
appeal (“NOA”).
The timing of Spring’s NOA raises a threshold jurisdictional question that
we address sua sponte. See Hernandez v. Thaler, 630 F.3d 420, 424 & n.11 (5th
Cir. 2011) (per curiam). A habeas proceeding is a civil action, so the “timely fil-
ing of [an NOA] is a jurisdictional prerequisite.” Id. at 424 & n.13. Spring had
thirty days from entry of the dismissal order on March 28, 2012, to file his NOA,
see FED. R. APP. P. 4(a)(1)(A), so the NOA was due April 27, 2012, see FED. R.
APP. P. 26 (a)(1)(A), (B).
Spring did not file an NOA within the thirty-day period. Instead, on
May 31, 2012, he moved for an extension of time to file his NOA, claiming good
cause and excusable neglect under Rule 4(a)(5) of the Federal Rules of Appellate
Procedure. The problem for Spring, however, is that a Rule 4(a)(5) motion based
on good cause or excusable neglect must be filed within thirty days of the expira-
tion of the time to file an NOA. FED. R. APP. P. 4(a)(5)(A)(i). Because the period
for filing an NOA expired on April 27, the motion for extension was due May 29
(excluding May 27 and 28, a Sunday and a federal holiday, respectively). See
FED. R. APP. P. 26(a)(1)(A)-(C). The May 31 motion was untimely, and the dis-
trict court’s order granting the motion did not confer jurisdiction on this court.
See, e.g., In re MDL 262, 799 F.2d 1076, 1078-79 (5th Cir. 1986) (holding that
compliance with Rule 4(a)(5) is essential to appellate jurisdiction).
Moreover, Spring’s motion for a COA, filed on April 1, 2012, cannot be
deemed a timely NOA. Although a document filed within the notice period may
be construed as an NOA, it must, among other things, clearly evince an intent
to appeal. See Bailey v. Cain, 609 F.3d 763, 765-66 (5th Cir. 2010); Page v.
DeLaune, 837 F.2d 233, 236-37 (5th Cir. 1988). Spring’s COA motion stated, “In
2
Case: 12-30659 Document: 00512181907 Page: 3 Date Filed: 03/20/2013
No. 12-30659
an abundance of caution, and should Petitioner decide to seek appellate action
within the time period provided under Federal Rule of Appellate Procedure 4(a),
[a COA] is respectfully requested.” That language does not clearly evince
Spring’s intent to appeal. In addition, neither the motion for COA nor the order
granting it mentions good cause or excusable neglect; thus, the grant of a COA
does not bear on timeliness. See Mann v. Lynaugh, 840 F.2d 1194, 1198-99 &
n.4 (5th Cir. 1988).
Because Spring failed to file a timely NOA, we do not have jurisdiction. See
Hernandez, 630 F.3d at 424 & n.11; In re MDL 262, 799 F.2d at 1078-79. The
appeal, accordingly, is DISMISSED for want of appellate jurisdiction.
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